California State University (Academic Professionals of California) (PERB 1094H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ACADEMIC 	PROFESSIONALS 	OF
CALIFORNIA,
Charging 	Party,
v.
TRUSTEES 	OF THE 	CALIFORNIA
STATE UNIVERSITY,
Respondent.
Case No. 	LA-CE-395-H
PERB Decision No. 	1094-H
April 6, 	1995
Appearances: 	Edward R. 	Purcell, 	APC Labor Relations Consultant,
for Academic 	Professionals 	of California; 	Office 	of 	the General
Counsel by James R. 	Lynch, 	Attorney, 	for Trustees of the
California 	State 	University.
Before Carlyle, 	Garcia and Johnson, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case 	is before the 	Public Employment
Relations Board 	(PERB or Board) 	on appeal by the Academic
Professionals 	of 	California 	(APC) 	to a Board agent's 	dismissal
(attached hereto) 	of 	its 	charge 	that 	the California State
University made 	unilateral 	changes 	in policy and 	interfered with
APC's 	right 	to 	file grievances. 	This 	conduct was alleged to
violate section 3571(b) 	and 	(c) 	of 	the Higher Education Employer-
Employee Relations Act 	(HEERA).1 After 	investigation, 	the Board
HEERA	1HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code. 	Section 3571 states, 	in pertinent part:
It 	shall 	be unlawful 	for the higher education
employer 	to do any of 	the 	following:
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
)
)
)
)
)
)
)
)
)
)
)
_______________ )

agent 	dismissed 	the 	charge 	for 	failure 	to 	state 	a prima 	facie
violation of 	HEERA.
(c) 	Refuse or fail 	to engage 	in meeting and
conferring with an 	exclusive 	representative.
The 	Board has 	reviewed 	the 	Board agent's 	warning 	and
dismissal 	letters, 	and finding them free of prejudicial 	error,
adopts 	them as 	the 	decision of 	the 	Board 	itself 	in accordance
with 	the 	discussion below.
DISCUSSION
In his warning letter, 	the Board agent 	correctly emphasized
that 	PERB does 	not 	have authority to enforce 	contracts.
However, 	on another 	issue 	the Board agent made 	reference 	to
Chula Vista City School District 	(1990) 	PERB Decision No. 	834
(Chula Vista), 	where the Board determined that an exclusive
representative's 	right 	to 	file a grievance 	in 	its 	own name 	"is 	a
statutory 	right, 	and a proposal 	that 	the 	exclusive 	representative
waive 	that 	right 	is 	a non-mandatory subject 	of bargaining." 	The
Board agent 	then 	stated 	that 	as 	with any permissive 	or non-
mandatory subject 	of 	bargaining, 	the union may waive 	or limit 	its
right 	if 	it determines 	to do so. 	The Board agent 	concluded that
APC did 	in fact 	agree 	to 	limit 	its 	right 	to 	file grievances 	to
allege only violations of Article 	8, 	(Union Rights) 	of 	the
parties' 	Collective Bargaining Agreement 	(CBA).
The 	Board 	finds 	the 	Board agent's 	reliance 	on Chula Vista 	to
be 	inappropriate. 	In Chula Vista and other 	related cases 	(South
22

Bay Union School District 	(1990) 	PERB Decision No. 	791, 	affd. 	in
South Bay Union School Dist, 	v. 	Public Employment Relations 	Bd.
(1991) 	228 Cal.App.3d 502 	(South Bay); 	Mt. 	Diablo Unified School
District 	(1990) 	PERB Decision No. 	844; 	Inglewood Unified School
District 	(1991) 	PERB Order No. 	Ad-222), 	the Board found that the
exclusive 	representative has 	a 	statutory right2 to 	file
grievances 	in 	its 	own name under Educational 	Employment 	Relations
Act section 3543.1 (a).3
However, 	the Board has never ruled on the 	issue 	of whether a
statutory 	right 	exists 	under HEERA for a union 	to 	file 	a
2One 	exception raised by APC 	is 	that 	if 	a 	statutory right 	is
found, 	it 	is nonwaivable. 	This position relies 	on former Board
Member Camilli's 	concurrence 	in South Bay. 	However, 	in
Chula Vista, 	the 	Board adopted Member Camilli's 	rationale 	insofar
that 	the 	exclusive 	representative's 	right 	to 	file a grievance 	in
its 	own name 	is a statutory right, 	and that 	it was 	a nonmandatory
subject 	of bargaining. 	The Board did not 	adopt 	nor has 	it 	ruled
that, 	in finding a statutory right, 	it 	is a nonwaivable or non-
negotiable 	right.
3EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.1 states, 	in pertinent part:
(a) 	Employee organizations 	shall have the
right 	to 	represent 	their members 	in 	their
employment 	relations 	with public 	school
employers, 	except 	that once an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate unit 	pursuant 	to 	Section 	3544.1
or 3544.7, 	respectively, 	only that employee
organization may represent 	that unit 	in 	their
employment 	relations 	with 	the public 	school
employer. 	Employee 	organizations may
establish 	reasonable 	restrictions 	regarding
who may 	join and may make 	reasonable
provisions 	for 	the 	dismissal 	of 	individuals
from membership.
33

grievance 	in its 	own name. 	We 	find that 	it 	is unnecessary to
decide 	this 	issue 	since whether or not 	a 	statutory right 	is
found, 	HEERA still 	provides 	that 	an exclusive 	representative's
right 	to meet 	and 	confer and to 	represent 	its unit members 	is
part 	of 	the bargaining process 	(HEERA sections 	3570 	and
3571(c)).4 (Regents of 	the University of California 	(1991) 	PERB
Decision No. 	891-H.) 	Here, 	both an arbitrator and the Board
agent 	concluded 	that 	the APC had 	limited 	its 	ability 	to 	file
grievances 	in its 	own name 	to a single CBA article. 	The Board
supports 	this 	finding and 	concurs 	that 	since APC has 	limited 	its
rights 	through negotiation, 	it has 	failed to demonstrate a prima
facie 	case because APC did not 	allege violations 	of Article 	8
(Union Rights) 	of the CBA.
Finally, 	the Board also agrees 	with the Board agent 	that 	the
allegation 	in APC's 	charge 	concerning 	the 	improper docking 	of
employees' 	time was untimely filed. 	APC 	failed to 	file 	the
4Section 3570 	states:
Higher education employers, 	or such
representatives as 	they may designate, 	shall
engage 	in meeting 	and 	conferring with 	the
employee 	organization 	selected as 	exclusive
representative 	of 	an appropriate unit 	on all
matters within the 	scope 	of 	representation.
Section 3571 states, 	in pertinent part:
It 	shall 	be unlawful 	for the higher education
employer to do any of 	the 	following:
(c) 	Refuse 	or fail 	to engage 	in meeting and
conferring with an 	exclusive 	representative.
44

docking 	charge within six months 	of 	when 	the alleged docking 	took
place. 	(California State Employees Association 	(Darzin) 	(1985)
PERB Decision No. 	546-S; 	Fairfield-Suisun Unified School District
(1985) 	PERB Decision No. 	547.)
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-395-H is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Garcia and Johnson 	joined 	in 	this 	Decision.
55

STATE OF CALIFORNIA 	, 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
October 31, 	1994
Edward R. 	Purcell, 	Consultant
Academic 	Professionals 	of 	California
419 	Carroll 	Canal
Venice, 	California 	90291
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-395-H, 	Academic Professionals of California
v. 	Trustees 	of 	the California State University
Dear Mr. 	Purcell:
In the above-referenced charge, 	which was 	filed on May 12, 	1994,
and amended on June 29, 	1994, 	and August 17, 	1994, 	the Academic
Professionals 	of 	California 	(APC) 	alleged that 	the 	California
State University 	(CSU) 	made unilateral 	changes 	in policy and
interfered with APC's 	right 	to file grievances. 	This 	conduct 	is
alleged to violate Government Code sections 3571(b) 	and 	(c) 	of
the Higher Education Employer-Employee Relations Act 	(HEERA).
I 	indicated to you, 	in my attached letter dated September 29,
1994, 	that 	the above-referenced charge did not 	state a prima
facie 	case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or additional 	facts 	which would correct 	the
deficiencies 	explained in that 	letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge 	to 	state a prima 	facie 	case 	or withdrew it prior to
October 6, 	1994, 	the charge would be dismissed.
On October 5, 	1994, 	you filed a third amended charge. 	This
amended charge 	had one 	significant 	new attachment: 	a 	copy of 	a
letter dated July 15, 	1993, 	from CSU Vice Chancellor June M.
Cooper to the CSU Presidents, 	on the subject 	"Fair Labor
Standards Act 	(FLSA) 	Policies and Procedures Clarification."
This 	letter stated 	in relevant part 	that 	"CSU will 	continue 	its
present policy of not 	'docking' 	an 	[FLSA-]exempt 	employee's pay
for absences 	of 	less 	than a day." 	The 	charge alleges 	that 	CSU
later violated 	this 	policy at 	the 	Pomona 	campus.
My 	further 	investigation of 	this 	allegation revealed the
following 	relevant 	facts.
In our conversation of October 13, 	1994, 	you identified three
employees 	at 	the 	Pomona 	campus 	who had been docked 	for absences
of 	less 	than a day. 	One had been docked as early as 	1991 and as
recently as July 22, 	1993. 	Another had also been docked as 	early

LA-CE-395-H
October 31, 	1994
Page 2
as 	1991 	and as 	recently as 	July 	1993. 	A third had been docked
several times 	from July 15, 	1993, 	to July 29, 	1993. 	You told me
that APC had been aware 	that 	the 	employees 	had been docked but
was 	unaware 	of 	CSU's 	FLSA policy letter 	(dated July 	15, 	1993)
until mid-February 	1994.
Based on 	the 	facts 	stated above, 	the allegation that 	CSU violated
its 	FLSA policy does 	not 	state a prima 	facie violation of 	the
HEERA within PERB's 	jurisdiction, 	for the reasons 	that 	follow.
As 	noted 	in my letter of 	September 29, 	Government 	Code 	section
3563.2(a) 	states 	that 	PERB 	"shall not 	issue a complaint 	in
respect 	of 	any 	charge 	occurring more 	than six months prior 	to 	the
filing of 	the 	charge." 	The docking of 	employees 	occurred, 	and
was 	known to APC, 	more than six months prior to the 	filing of 	the
present 	charge 	(on May 12, 	1994). 	All 	that occurred during the
six months prior to the 	filing of 	the 	charge was 	that APC became
aware of CSU's FLSA policy letter 	(dated July 15, 	1993), 	which
allegedly revealed the 	legal 	significance 	of 	the docking of
employees. 	The six-month period, 	however, 	runs from the
occurrence 	or discovery of 	the 	conduct 	allegedly 	constituting 	the
unfair practice 	(in this case, 	the docking of employees), 	not
from the 	discovery of 	the 	legal 	significance 	of 	that 	conduct.
(California State Employees Association 	(Darzins) 	(1985) 	PERB
Decision No. 	546-S; 	Fairfield-Suisun Unified School District
(1985) 	PERB Decision No. 	547.)
Furthermore, 	even if 	the allegation were timely, 	it would not
state a prima facie 	case of unilateral 	change. 	It appears 	from
the 	charge and the undisputed 	facts 	that both before 	and after
June 15, 	1993, 	CSU's official policy was not to dock FLSA-exempt
employees 	for absences 	of 	less 	than one day.1 It also appears
that both before and after June 15, 	1993, 	there were 	failures 	to
comply with this 	official 	policy.2 In the absence 	of a change 	in
policy, 	mere 	failures 	to 	comply with policy do not violate 	the
duty to bargain. 	(Grant Joint Union School District 	(1982) 	PERB
Decision No. 	196.)
On the 	issue of APC's 	right 	to file grievances, 	the 	third amended
charge argues 	that Article 	10.1 	of 	the 	collective bargaining
agreement, 	which limits APC to 	"alleging a violation of Union
Rights 	as provided 	for in this Agreement," 	does not 	limit APC to
1In our conversation of October 13, 	1994, 	you specifically
told me 	that APC was 	not alleging that 	the 	letter of June 	15,
1993, 	represented a change in policy.
2In fact, 	one employee was actually docked on June 15, 	1993,
the very day the 	FLSA policy 	letter was 	issued.

LA-CE-395-H
October 31, 	1994
Page 3
alleging violations of the 	"Union Rights" 	article 	(Article 8 ) .
This argument 	is persuasive, 	however, 	only to the extent that
other articles 	actually say something about Union Rights. 	If 	the
entire agreement were understood to describe Union Rights, 	then
the 	limiting 	language of Article 	10.1 would be meaningless.3 It
does 	not 	appear 	that 	any of 	the 	grievances 	filed by APC alleges 	a
violation of 	any 	contractual 	language 	that 	actually describes
Union Rights.
On the 	issue of 	the 	timeliness 	of 	the 	charge with respect 	to the
conduct underlying the grievance filed on November 11, 	1993, 	the
third amended 	charge argues 	that 	the 	charge was 	timely because 	it
was 	filed within six months 	of 	CSU's denial 	of APC's 	grievance.
In Regents 	of 	the University of California 	(1990) 	PERB Decision
No. 	826-H, 	however, 	PERB held that under HEERA the six-month
statute 	of 	limitations 	is 	not 	tolled by the pursuit 	of 	a
grievance 	concerning 	the 	same dispute. 	With respect 	to 	the
conduct underlying both the 	charge and the grievance, 	the 	charge
should therefore have been 	filed within 	six months 	of 	the
conduct, 	not within six months of the denial of 	the grievance.
I am therefore dismissing the 	charge, 	based on the 	facts 	and
reasons 	contained 	in 	this 	letter and 	in my September 29 	letter.
Right 	to Appeal
Pursuant 	to Public 	Employment Relations Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to 	the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal 	must be actually 	received by 	the 	Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United States mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall apply.
The Board's address 	is:
Public Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
3Also, 	if APC had the right 	to file a grievance about
everything in the agreement, 	then Article 	10.21 	(stating that
"[n]o 	representative 	or agent 	of 	the 	exclusive 	representative
[APC] 	may solicit 	complaints 	or grievances") 	would serve no
purpose.

LA-CE-395-H
October 31, 	1994
Page 	4
If you 	file a 	timely appeal 	of 	the 	refusal 	to 	issue a 	complaint,
any 	other party may 	file with 	the 	Board an original 	and 	five
copies 	of a statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof 	of 	service"
must 	accompany each copy 	of 	a 	document 	served upon a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample 	form.) 	The
document will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time, 	in which to file a document
with the Board 	itself, 	must be 	in writing and filed with the
Board at 	the previously noted address. 	A request 	for an
extension must be 	filed at 	least 	three 	(3) 	calendar days before
the expiration of 	the 	time 	required 	for 	filing the document.
The request must 	indicate good cause for and, 	if known, 	the
position of 	each other party regarding the 	extension, 	and shall
be 	accompanied by proof 	of 	service 	of 	the 	request upon each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the specified time limits, 	the
dismissal will become 	final 	when the 	time 	limits 	have expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By THOMAS J. ALLEN	ALLEN
Regional Attorney
Attachment
cc: 	William G. 	Knight

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
~ Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
September 29, 	1994
Edward R. 	Purcell, 	Consultant
Academic 	Professionals 	of 	California
419 	Carroll 	Canal
Venice, 	California 	90291
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-395-H,
Academic Professionals 	of 	California v. 	Trustees 	of 	the
California 	State 	University
Dear Mr. 	Purcell:
In the above-referenced charge, 	which was 	filed on May 12, 	1994,
and amended on June 29, 	1994, 	and August 17, 	1994, 	the Academic
Professionals 	of 	California 	(APC) 	alleges 	that 	the California
State University 	(CSU) 	made unilateral 	changes 	in policy and
interfered with APC's 	right 	to 	file grievances. 	This 	conduct 	is
alleged to violate Government Code sections 3571(b) 	and 	(c) 	of
the Higher Education Employer-Employee Relations Act 	(HEERA).
My 	investigation of 	the 	charge 	reveals 	the 	following 	relevant
facts.
APC 	is 	the exclusive 	representative 	of a unit 	of 	CSU's Academic
Support 	employees. 	The 	collective bargaining agreement between
APC 	and 	CSU 	includes 	a grievance procedure which defines
"grievant" 	as 	follows 	in Article 10.1:
Grievant 	- 	The term "grievant" 	as used in
this Article refers 	to a:
a. 	permanent employee(s);
b. 	probationary employee(s);
c. 	temporary employee(s) 	employed at 	thirty
(30) 	consecutive days 	immediately prior
to the event giving rise 	to the
grievance
who alleges 	in a grievance 	that he/she has
been directly wronged by a violation of 	a
specific 	term of 	this Agreement.
The 	term 	"grievant" 	as used in this Article
may refer to 	the Union when alleging a
violation of Union Rights 	as provided 	for 	in
. . . 	.
===-----==--~- 	-

LA-CE-395-H
September 29, 	1994
Page 2
this Agreement. 	A grievance alleging 	such a
violation may be 	filed at Level 	II 	-
Presidential 	Review.
On August 2, 	1993, 	an arbitrator held as follows:
Under Article 	10.1 	union grievances must
allege a violation of APC's 	"union rights"
under Article 8, 	Union Rights, 	and be filed
at 	Level 	II 	of the grievance procedure.
[Emphasis 	in original.]
The 	arbitrator 	concluded 	that 	a grievance 	filed by APC 	that 	did
not 	allege a violation of Article 	8 	was not arbitrable.
On November 11, 	1993, 	APC filed a grievance alleging that CSU
violated Articles 	1, 	13 	and 33 	and Appendix A of 	the 	collective
bargaining agreement as 	follows:
At 	least 	one and up 	to 	four Clerical
Assistants 	(Unit 7, 	CSEA) 	were 	"promoted"
through 	internal 	department programs 	to
Evaluator Trainees 	(Unit 4, 	APC) 	in violation
of 	the APC articles and appendix.
Article 	1 deals with Recognition, 	Article 13 with Appointment,
and Article 	33 	with layoff; 	Appendix A lists 	the 	classifications
in the unit. 	The charge acknowledges 	that 	the grievance 	raises
issues 	of 	"first 	impression" 	based on articles 	"not previously
interpreted."
On March 17, 	1994, 	CSU made its Level 	III response to this
grievance. 	CSU asserted that 	the grievance was 	"fatally
Procedurally defective" 	because 	it 	did not allege 	that Article 	8
(Union Rights) 	had been violated. 	CSU responded to the
substance of 	the grievance 	in part as 	follows:
No provision of Article 	13 	requires 	that 	the
University 	create 	a vacancy 	in a position 	for
the purpose of 	recruitment 	or recall.
Article 	17 	recognizes 	in provisions 	17.3 	and
17.4 	that 	the 	President may assign employees
to perform the work of 	a higher
classification and 	that 	the 	President may
make 	reassignments 	for the purposes 	of
training. 	Finally, 	the re-employment rights
of provision 33.27 are applicable only at 	the
campus 	from which an employee 	on a recall
list was 	laid off. 	This 	is distinct 	from the
job 	clearinghouse 	rights 	under provision

LA-CE-395-H
September 29, 	1994
Page 3
33.29, 	which only requires that employees on
a 	recall 	list 	be 	granted an 	interview 	for
positions 	at another campus 	if 	they make
application for employment at 	that 	campus.
CSU therefore 	denied 	the 	grievance.
On April 	15, 	1994, 	APC filed another grievance, 	this one alleging
that 	CSU violated Articles 	2, 	14 	and 28 	and Appendix D as
follows:
Ed. 	Equity has posted a 	0.9 	SSP 	III position.
Full-time work will 	be 	expected of 	the
position without 	any full-time 	rights. 	The
work of 	an exempt 	employee 	cannot 	be
accounted 	for by 	the hour.
Article 2 	deals with Definitions, 	Article 	14 with Probation and
Permanency/Tenure, 	and Article 28 with Hours of Work; 	Appendix D
lists 	the 	classifications 	not 	eligible 	for overtime 	compensation.
On May 10, 	1994, 	and again on June 8, 	1994, 	CSU denied the
grievance 	on 	the 	sole ground that 	it 	did not allege 	a violation
of Article 8 	(Union Rights).
On March 4, 	1994, 	APC filed yet another grievance, 	this one
alleging that CSU violated Articles 3, 	19, 	26 and 28 and
Appendices D and E as 	follows:
The 	CSU has 	not 	restored to 	FLSA-exempt
members of Unit 4 	even when requested, 	the
vacation and 	sick hours 	which were 	deducted
in increments 	of 	less 	than eight hours. 	This
practice 	is 	incompatible with the 	employees
classification as 	FLSA-exempt 	employees. 	In
addition, 	the CSU has docked the pay of 	FLSA-
exempt 	employees who were absent 	for partial
days.
Article 3 	deals with Effect of Agreement, 	Article 19 with Sick
Leave, 	Article 26 with Vacation, 	and Article 28 with Hours of
Work; 	Appendices D and E 	list 	the 	classifications 	eligible and
not eligible for overtime compensation. 	On April 	14, 	1994, 	CSU
allegedly 	took 	the position 	that APC had no 	contractual 	standing
to file the grievance.
The 	charge alleges 	that 	the 	three alleged 	contract violations
cited 	in the 	three grievances 	represented CSU's 	"repudiation" 	of
the 	collective bargaining agreement. 	The 	charge alleges 	that 	the
alleged violations were 	"unilateral 	changes" 	that:

LA-CE-395-H
September 29, 	1994
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a 	-- 	breached both the Parties' 	written
agreement 	and past practice;
b - - 	were undertaken without prior
notice 	to APC and without 	giving 	the Union
the 	opportunity 	to bargain;
c 	- - 	are not mere isolated breaches of
the MOU, 	but entail 	system-wide contract
interpretations 	upheld 	and annunciated by 	the
CSU's 	central 	administration thus 	having
generalized affect 	[sic] 	and continuing
impact on unit members' 	terms and conditions
of employment; 	and
d - - 	are within the scope of
representation.
The 	charge 	does 	not 	specifically allege 	how the 	alleged
violations 	breached 	the 	agreement 	and past practice 	and
represented 	"repudiation" 	of 	the agreement.
Based on the 	facts 	stated above, 	the 	charge does not 	state a
prima 	facie violation 	of 	the 	HEERA within the 	jurisdiction 	of 	the
Public Employment Relations Board 	(PERB or Board), 	for the
reasons 	that 	follow.
In Chula Vista City School District 	(1990) 	PERB Decision No. 	834,
the 	Board determined 	that 	an exclusive 	representative's 	right 	to
file grievances 	in its own name 	"is a statutory right, 	and a
proposal 	that 	the 	exclusive 	representative waive 	that 	right 	is 	a
non-mandatory 	subject 	of 	bargaining." 	The 	Board determined 	that
the 	failure 	to drop a demand that 	a union waive 	its 	right 	to 	file
grievances, 	after the union communicates 	its 	refusal 	to include
the 	subject 	in bargaining, 	may violate Government 	Code 	section
3543.5(c). 	However, 	as with any permissive or non-mandatory
subject 	of bargaining, 	the union may waive or limit 	its 	right 	if
it determines 	to do so.
As 	the arbitrator found on August 2, 	1993, 	APC did agree to limit
its 	right 	to 	file grievances 	to those grievances 	that allege
violations 	of APC's 	contractual Union Rights. 	CSU was 	therefore
under no 	obligation 	to process APC grievances 	that 	did not 	allege
violations 	of APC's 	contractual Union Rights.
Government 	Code section 3563.2(a) 	states 	that PERB 	"shall not
issue 	a 	complaint 	in respect 	of 	any charge based upon an alleged
unfair practice 	occurring more 	than six months prior to 	the
filing of 	the 	charge." 	The present 	charge was 	filed on May 	12,
1994, 	and amended on June 29, 	1994, 	and August 17, 	1994. 	The
grievance 	filed on November 11, 	1993, 	was 	filed more than six
months before 	the 	charge was 	filed or amended. 	Any unfair
practice 	cited 	in 	that 	grievance must 	have 	occurred more 	than 	six
...

LA-CE-395-H
September 29, 	1994
Page 5
months 	prior 	to 	the 	filing of 	the 	charge 	and must 	therefore be
outside 	PERB's 	jurisdiction.
Government Code section 3563.2(b) 	states 	that 	PERB 	"shall not
have authority to enforce agreements between the parties, 	and
shall 	not 	issue a 	complaint 	on any 	charge based on an alleged
violation of 	such an agreement 	that would not 	also 	constitute an
unfair practice under this 	chapter." 	In order to 	constitute 	an
unfair practice, 	an alleged violation must 	amount 	to a change 	of
policy, 	that 	is, 	it must alter an established policy and
institute 	a new policy of 	general 	application or 	continuing
effect. 	(Grant Joint Union School District 	(1982) 	PERB Decision
No. 	196.) 	To show a change 	in policy, 	a charging party must
first 	show what 	the 	established policy was, 	either by contract
language 	or past practice. 	(Eureka City School District 	(1985)
PERB Decision No. 	528.) 	A change 	in policy is not 	shown where
the 	respondent 	has merely 	interpreted 	contract 	language 	in a
reasonable way, 	although different 	from the 	charging party's way,
and has 	not 	repudiated a prior understanding, 	agreement 	or
practice. 	(Id.)
The present 	charge alleges 	that 	CSU has 	engaged 	in 	"unilateral
changes" 	and 	"repudiation" 	of 	the 	collective bargaining
agreement, 	but 	these 	legal 	conclusions 	need not be accepted as
true where, 	as here, 	they are not 	supported by factual
allegations. 	(Charter Oak Unified School District 	(1991) 	PERB
Decision No. 	873.) 	The present 	charge does not 	specifically
allege 	what 	the 	established policies 	were 	and how 	they were
established by specific 	contract 	language 	or past practice. 	The
charge 	also does 	not 	allege how CSU ever 	repudiated the
collective bargaining agreement. 	It appears 	from the 	charge 	that
CSU and APC 	interpret 	the agreement 	differently, 	but 	this 	is 	not
enough to 	demonstrate 	the 	existence 	of 	any unfair practice within
PERB's 	jurisdiction.
For these reasons 	the charge, 	as presently written, 	does not
state a prima 	facie 	case. 	If 	there are any factual 	inaccuracies
in 	this 	letter or additional 	facts 	which would correct 	the
deficiencies 	explained above, 	please amend the charge. 	The
amended 	charge 	should be prepared on a 	standard 	PERB unfair
practice 	charge 	form, 	clearly labeled First Amended Charge,
contain all 	the 	facts and allegations you wish to make, 	and
be 	signed under penalty of perjury by the 	charging party. 	The
amended 	charge must 	be 	served 	on the 	respondent 	and the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I do not 	receive an

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September 29, 	1994
Page 6
amended charge or withdrawal from you before October 6, 	1994, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
V
Thomas J. Allen
Regional Attorney
V